Shanti Devi Verma v. Deputy Director of Education — 1982 DIGILAW 635 (ALL)

JUDGMENT M.N. Shukla, A.C.J. - The petitioner was appointed on ad hoc' basis as an Assistant Teacher (Drawing) in the Janta Uchchatar Madhyamic Vidyalaya, Alipur (Meerut) on 6 10-1975. The approval of the District Inspector of Schools was also obtained on 27-4-1976. She continued to function in her post thereafter but the trouble arose in 1979 when her tenor of work was suddenly disrupted. On 25-10-1979 the management of the College addressed a letter to the District Inspector of Schools alleging that it had passed a resolution, dated 16-4-1979, terminating the services of the petitioner. The allegation made in the aforesaid resolution was that the petitioner had initially secured her appointment by misrepresentation with regard to tier qualification and by presenting fake documents in proof of the same. On 13-12-1979 the District Inspector of Schools gave his approval to the action contemplated by the management. The petitioner preferred an appeal to the Deputy Director of Education under section 16-G (3) (c) of the U.P. Intermediate Education Act but the same Was dismissed on 5-1-1980. In short, it may be slated that the Deputy Director of Education did not record any finding on the factual allegations made against the petitioner with regard to the alleged misrepresentation about her qualification but chose to dispose of the appeal on an entirely different ground, which now gives rise to the point for decision in the present writ petition. He held that the petitioner did not possess the requisite qualifications at the time when she was given the appointment and, consequently, this was not a fit case in which the appeal should be allowed and her functioning as an Assistant Teacher in the College be given a seal of approval. 2. In the circumstances the point which arises for termination is as to whether the petitioner was dis entitled from function: as an Assistant Teacher in the College for lack of the prescribed qualifications at the time of her appointment. In the. 2. In the circumstances the point which arises for termination is as to whether the petitioner was dis entitled from function: as an Assistant Teacher in the College for lack of the prescribed qualifications at the time of her appointment. In the. period 1975-76 the matter of appointment of a teacher in a recognised institution was governed by section 16-F of the U.P. Intermediate Education Act, as it then, stood and which is reproduced below : "16-F (1) Subject to the provisions hereinafter specified, no person shall be appointed as a Principal, Headmaster or teacher in a recognised institution unless he - (a) possesses the prescribed qualifications or has been exempted under sub-section (1) of section 16-E ; (b) has been recommended by selection committee constituted under sub-section (2) or (3), as the case may be, of the said section and approved in the case of principal or Headmaster by the Regional Deputy Director, Education and in the case of a teacher by the Inspector : Provided that if the Inspector is satisfied that for any institution no candidate, who possesses all the prescribed qualifications, is available for appointment, he may permit the institution to employ as a temporary measure any suitable person for a period not exceeding one year. Such period may be extended with the period approval of toe Inspector. Provided also that in the case of leave vacancy or of vacancy occurring for a part of the session of the institution it shall be lawful for the Committee of Management to appoint a Principal, Headmaster or teacher if information of such an appointment is immediately conveyed to the Inspector." 3. The minimum qualifications for the appointment of an Assistant Teacher (Drawing) were prescribed in Appendix A serial No. 3 which reads: "3 High School Examination with Technical Drawing and any of the following qualifications : (f) Intermediate Grade Drawing Examination Bombay." 4. Chapter II of the Regulations framed under the U.P. Intermediate Education Act, as it stood in 1975-76 provided the procedure applicable to the appointment of teachers. Regulation 9 of Chapter II dealt with the appointment of teachers by direct recruitment and Regulation 10 dealt with the appointment of teachers by promotion. It is to be noted that section 16-F was fortified by a proviso which enabled the District Inspector of Schools in certain circumstances to waive the requirement about the prescribed qualifications. Regulation 9 of Chapter II dealt with the appointment of teachers by direct recruitment and Regulation 10 dealt with the appointment of teachers by promotion. It is to be noted that section 16-F was fortified by a proviso which enabled the District Inspector of Schools in certain circumstances to waive the requirement about the prescribed qualifications. This proviso evidently destroyed the right or inflexible character of the requirement about qualifications as mentioned in section 16-F. 5. The above provisions have undergone a change and the provisions relating to the selection of teachers and Head of Institution have been incorporated in Section 16 E of the U.P. Intermediate Education Act. The amending Act no. 26 of 1975 recast sections 16-E and 16 F of the Act and also added section 16-FF and 16 FFF. Section 16 E (3) substantially reproduces the provisions of section 16-F, as it formerly stood, it enacts : "(3) No person shall be appointed as Head of institution or teacher in an institution unless he possesses the minimum qualifications prescribed by the regulations. Provided that a person who does not possess such qualification may also be appointed if he has been granted exemption by the Board having regard to his education, experience and other attainments." 6. In this section also the element of flexibility has been retained by adding the proviso which permits exemption from the prescribed qualifications by the Board. In this connection it is germane to refer to the relevant changes in the regulations included in Chapter II. Regulations 6 (1) deals with the appointment of teachers by promotion and says : "6. (1). Where any vacancy in the lecturers grade as determined under Regulation 5, is to be filled by promotion, all teachers working in the L.T. or C.T. grade, as the case may be, having a minimum of five years continuous substantive service to their credit on the date of occurrence of the vacancy shall be considered for promotion by the Committee of Management without their having to apply for the same provided they possess the prescribed minimum qualifications for teaching the subject in which the teacher in the lecturers grade or in the L.T. grade is required." 7. The important feature of the above regulation is that it requires that a candidate must possess the prescribed qualification on the date of occurrence of the vacancy". The important feature of the above regulation is that it requires that a candidate must possess the prescribed qualification on the date of occurrence of the vacancy". Regulation 10 of the same Chapter lays down the procedure for filling up the vacancies of teachers by direct recruitment. It does not to join that the minimum prescribed qualification must be possessed by a candidate on the date of occurrence of the vacancy. In fact, such express requirement is not found either in any other regulation referred to above or in section 16-F as it formerly stood, or the substantive section 16-E, as it stands now. It is also significant that even in regulation 6 (1) the words on the date of occurrence of vacancy"do not qualify the words provided they possess the prescribed minimum qualification but qualify only the phrase "having a minimum of five years continuous substantive service to their credit". In other words, if the teacher concerned has to his credit five years continuous substantive service on the date of occurrence of the vacancy he need not apply for appointment. His appointment by promotion has to be considered by the Committee of Management even without his formal application for that purpose. Thus, in none of the relevant provisions to which I have adverted above it appears that there is emphasis on the fulfilment of the prescribed minimum qualification on the date of appointment to such an extent that even the last removal of such disqualify may prove ineffectual. It is, no doubt, true that in section 16-F of the amended Act the present tense verb possession is used and likewise in clause (3) of Section 16-F of the Amended Act also the present tense very possession occurs. The use of this expression may lead to the inference that the fulfilment of the prescribed minimum qualification is imperative at the time when the appointment is to be made. In other words, it is a condition precedent to the appointment and if on the crucial date, namely, the date of appointment such qualification is wanting, the appointment itself may be void. 8. The learned counsel for the petitioner, however, contended that the qualification prescribed by the Statute and the Regulations should not be given such a strict and rigid construction as to treat the appointment a candidate, who falls short of such qualification, as a nullity. 8. The learned counsel for the petitioner, however, contended that the qualification prescribed by the Statute and the Regulations should not be given such a strict and rigid construction as to treat the appointment a candidate, who falls short of such qualification, as a nullity. It may at best be regarded as an irregularity which is capable of being cured by subsequent acquisition of the qualification. An analysis of the various provisions aforementioned leads to the conclusion that the intention was not to invest these provisions with such inflexibility as to make any departure from the same fatal to the appointment itself. An over-all examination of the relevant provisions warrants the conclusion that they are to be treated as elastic and, therefore, where before any punitive or other adverse action is taken against the candidate appointed, if the disqualification has disappeared and the candidate at that stage fully satisfies the prescribed qualification, then the irregularity should be treated as cured and the appointment should not be struck down. It may, however, immediately qualify the above statement by adding that where it is found as a matter of fact that the petitioner had secured any " such appointment fraudulently or by studiously suppressing the correct facts or practising misrepresentation with regard to the qualifications, the Court should refine to give any relief to such, petitioner notwithstanding the fact that at a later stage the disqualification may have been cured. In a case, however, where there is ho finding, as there is none in the instant case, to the effect that the petitioner had resorted to any such questionable means to obtain an appointment, and where before the irregularity is discovered and appropriate action is sought to be taken against the petitioner, he or she has already acquired the requisite qualification, then the appointment should be upheld. In fact, in a case like the one before me the employers may really be estopped from pleading a disability for the purpose of dispensing with the services of an appointee, when they have themselves initially permitted such disability not to stand in the way of the candidate and allowed him to function and discharge his duties to their satisfaction. In fact, in a case like the one before me the employers may really be estopped from pleading a disability for the purpose of dispensing with the services of an appointee, when they have themselves initially permitted such disability not to stand in the way of the candidate and allowed him to function and discharge his duties to their satisfaction. Obviously, it would not be in conformity with the principles of equity and justice that despite the fact that the appointee has acquitted himself well in his post the employer may be allowed at a later stage to turn round and remove the appointee on the ground of his initial lack of qualification at the time of his appointment. This is a principle which needs be evolved in order to protect a candidate, who with the approval, tacit or otherwise, of the employer has entered into service and discharged his duties satisfactorily. The correct thing always for the appointing authority is to scrutinise and examine the qualification possessed by a candidate before appointing him and refuse to appoint who falls short of the required qualification. But having once given a go by to such requirement and permitted a candidate to prove his worth and mattle, it does not behave the employers later on to go back on their implied assurance and take advantage of their 'own failure to enforce the requirement of the qualification rigidly, the facts of the present case follow exactly the same pattern. the petitioner was appointed in 1976 and was permitted to function throughout until 1979 when the District Inspector of Schools granted approval to the proposal for termination of her services. It is very striking that even the resolution of the managing Committee dated 16-1-1979 proposing to terminate the services of the petitioner was not sent to the District Inspector of Schools for six months and it was only on 25-10-1979 that it was ultimately dispatched to the District Inspector of Schools. There is nothing on record to indicate that during this period the petitioner was found inefficient in the discharge of her duties or was guilty of any misconduct. It does not stand to reason that without the connivance of the College authorities the petitioner would have been able to secure her initial appointment and, thereafter, suffered to continue in in job for such a long time. It does not stand to reason that without the connivance of the College authorities the petitioner would have been able to secure her initial appointment and, thereafter, suffered to continue in in job for such a long time. In these circumstances at the crucial time when the petitioners services were going to be terminated She had already acquired full qualification for her job and, therefore she should not be visited with such penalty at the instance of the management. 9. In my opinion the view that I am taking in the present case finds support from the decision of the Supreme Court in Ram Swarup v. State of Haryana and others, AIR 1978 SC 1536 . In that case the appellant was appointed as Labour-Cum-Conciliation Officer under sub-rule (1) of rule 4 of the Punjab Labour Service (Classes I and IT) Rule, 1955, which provided that no person could be appointed as Labour-Cum Conciliation Officer unless he possessed the educational and other qualifications mentioned in that clause and the minimum such qualifications were, inter alia, that he must have five years experience of the working of Labour Laws as Labour Inspector etc. The appellant did not satisfy this qualification inasmuch as he did not have the necessary five years experience on the date of appointment. Still he was allowed to hold the post for nine years after which he was reverted to the post of Statistical Officer. In these circumstances the Supreme Court held that the appellant could not have been legitimately appointed to the post of Labour-Cum-Conciliation Officer, nevertheless they declined to rule that the appointment was void The conclusion was stated in paragraph 30 of the report as follows: "We are of the view that the appointment of the appellant was irregular since he did not possess one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years experience of the working of Labour laws in any of the three capacities mentioned in Clause (I) of Rule 4 or in any higher capacity his appointment must be regarded as having been regularised). It was found as a matter of fact that before the order of reversion was passed the appellant had the necessary five years experience." 10. It was found as a matter of fact that before the order of reversion was passed the appellant had the necessary five years experience." 10. On a parity of reasoning, I am inclined to hold that even though the appointment of the petitioner in the instant case may be said to be in breach of section 16-F (1) of the U.P. Intermediate Education Act, as it then stood, nevertheless such appointment may only be regarded as irregular and not void. My attention was drawn to two decisions in support of a contrary proposition. The first of them is Committee of Management, Sri Param Hans Intermediate College, Hanumannagar, Azamgarh v. The Additional Director or Education U.P. Allahabad and others, 1981 U.P. Local Bodies and Educational Cases page 50. In that case Regulation 6 (I) of Chapter 11 of the U.P. Intermediate Education Act, as it stands at present, was interpreted and it was held that the condition preceding to the appointment of a teacher was possession of five years continuous substantive service and that such five years service should have been completed on the date of occurrence of the vacancy. I have already quoted the provisions of Regulation 6 (1) earlier in my judgment and also pointed out that it is applicable only to appointment by promotion and that similar words, namely, "on the date of occurrence of the vacancy"are conspicuous by their absence in the provisions relating to the appointment of teachers by direct recruitment. Therefore, this ruling cannot be of any assistance to the respondents. 11. The other authority referred to in the impugned order in favour of the opposite-party is a case Abdul Hafeez Khan, Abdul Ghafoor Khan v. Government of Madhya Pradesh Local Government Department, AIR 1965 Madhya Pradesh 48. This authority is wholly besides the point. There the appointment of the petitioner to a higher post was adjudged invalid and illegal, as it was made without obtaining prior approval of a certain authority and consequently it was held that his reversion to his substantive post could not amount to imposition of punishment. In the instant case, I have come to the conclusion that the initial appointment of the petitioner was not void and, hence, the petitioner is entitled to the relief prayer for in the writ petition. 12. In the instant case, I have come to the conclusion that the initial appointment of the petitioner was not void and, hence, the petitioner is entitled to the relief prayer for in the writ petition. 12. If follows that the order of the Deputy Director of Education holding that the petitioners initial appointment was illegal, is plainly erroneous and the order of the District inspector of Schools according approval to the resolution of the Managing Committee, dated 16-4-79 for terminating the services of the petitioner is also bad and cannot be sustained. 13. For these reasons this writ petition is allowed and the impugned orders dated 5-11-1980 (Annexure 7) and 13-12-1979 (Annexure 4) are quashed. The petitioner will be entitled to such salaries and emoluments as maybe payable to her during this entire period in accordance with law. la the circumstances of the case, I make no order as to costs.